Posted by Alan ChildressAn "ABAnet" email proclaims somewhat dramatically that Congress failed to overturn the U.S. Sentencing Commission's vote earlier this year to rescind its 2004 rule that had allowed waiver of privilege to be treated as cooperation under sentencing guidelines. That made the new policy effective November 1.

The ABA article from April 2006 that the email cites, linked here, is fine as far as it goes. The Sentencing Commission's movement in this direction is of course welcome, as far as it goes. But this does not put much of a dent in the "culture of waiver" and prosecutorial discretion that abounds today under the Thompson Memo (as we posted on here). That is because sentencing under the guidelines is only the tail end of many steps of discretion and negotiation that a client must go through. Long before that, in just the early steps, are prosecutorial decisions to be interested, to investigate, to expand the investigation, to indict, and the terms and limits of the charges (and many steps in between these). Long before sentencing is imposed, discretion begins. Until they are legally told otherwise, prosecutors are going to do what prosecutors will do (absent perhaps state bar ethics changes in this area, pushing back). They will encourage waiver. Even if they are told otherwise, by withdrawal of the DOJ policy or some state ethics rule, won't corporate counsel be eager to initiate the look of cooperation by offering to waive?

To the extent the 2004 commission policy had encouraged prosecutors to demand waiver, it makes a little sense that its demise led the ABA president to proclaim in April--sort of in Patrick Henry or Chevy Truck style--that the decision "is not only correct, it is good for America and its citizens, and our democracy." But the commission's reform is not a rescission of the Thompson Memo, which is DOJ policy not about sentencing as such--and should not be mistaken for one. I fear that the lingering and harmful effects of that policy (to privilege, and indeed to America and our democracy) will not only survive the end of the commission's policy but even the potential withdrawing of the memo and its overall prosecutorial policy as well. Further notes on the Holder Memo after the jump.

Further Notes on the So-Called Thompson Memo:

In its roundup of last week's "be thankfuls" (many funny), the White Collar Crime Prof Blog chose as #4: "Eric Holder can be thankful that Larry Thompson decided to redraft his memo so that when everyone criticizes the memo they call it the Thompson Memo."

The site also reports here an interesting November 30 Heritage Foundation conference in D.C. about the memo, the aftermath even if it goes, and the attorney-client relationship in white collar criminal practice generally. Thompson speaks. So does former AG Ed Meese.

That blog had also reported earlier, here, that other proposals within DOJ to answer the crticisms [of the ThompsonHolder Memo] are likely to be baby steps at best: "it sounds like they aren't ready to just plain ban this DOJ practice." It links several useful background posts from the site.